The Impact of This Election on Abortion Access Will Be Devastating

It's a new era in America, and Republican Donald Trump is now the going to be the next president of the United States. Plus, with Republican majorities in the House, the Senate, and in two-thirds of the state governors mansions, Trump will likely be able to enact his agenda with almost no resistance from Democratic lawmakers.

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And yes, that could well mean the end of safe, legal abortion in the country.

The anti-abortion movement faced some of its darkest hours following the death of Supreme Court Justice Antonin Scalia. The sudden loss of the most conservative member of the Court threw a wrench in a decade of intricate planning to pass a number of abortion restrictions in state legislatures with the hope that they would be challenged by abortion providers and eventually make it to the Supreme Court, where justices could rule to overturn Roe v. Wade. The 5 to 3 decision in Whole Women's Health v. Hellerstedt made it clear that without a new socially conservative justice the quest to end abortion through the court system was on hold.

Many Republican senators endangered their reelection chances by refusing to allow President Barack Obama to fill the vacant seat, but it's a gambit that paid off. Only one Republican incumbent lost his race at this point, with just one Senate race still too close to call, and that means when Trump is sworn into office this January, he will be able to appoint someone from his short list of judges "very much in the mold of Scalia." That new judge will once again make moderate Justice Anthony Kennedy–who is an inconsistent supporter of abortion rights at best–the swing vote on the court. Meanwhile there will be a number of laws geared toward testing his complicated feelings around the "life of the unborn" working their way up the docket.

In order to win over a social conservative movement that had doubts about the sincerity of his newly minted pro-life beliefs, Trump made a number of promises for his first term – promises that converted leaders like Susan B. Anthony List's Marjorie Dannenfelser over from "anyone but Trump" to leading his pro-life coalition. First on the list were pledges to defund Planned Parenthood, to make the Hyde Amendment–a rule that forbids any taxpayer funds to be used to cover abortion, even for Medicaid patients–a permanent rule rather than something that must be renewed every year, and sign a federal ban on abortion at 22 weeks gestation into law.

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It's the federal "Pain Capable Unborn Child Protection Act"–a bill that would ban abortions nationally after 20 weeks post-fertilization or 22 weeks gestation–that very well could be the nail in the coffin of Roe. Since the first "20 week" abortion ban was introduced in Nebraska in 2010, abortion opponents have been hoping for a favorable lower court ruling that would potentially be challenged at the Supreme Court. They never got that chance–the 20-week ban passed in Texas was not included in the other restrictions challenged in Whole Woman's Health v. Hellerstedt. If Trump follows through on his pledge to sign such a bill, which the Republican Party now has the majorities in the House and Senate to pass, abortion providers will have to go to court or else the right to end a pregnancy will stop at just 22 weeks. That's a period that is still considered prior to viability by most doctors and where not all fetal anomalies may have yet been identified. It's also a direct conflict with Roe, which forbids any total bans on abortion prior to viability.

There was already a reasonable suspicion that despite that violation, Justice Kennedy would be willing to consider allowing states to ban abortion prior to viability if they justify it as ending it at the point where the anti-abortion community (but not most doctors or scientists) claim that "a fetus feels pain." And getting more opportunities to put a "fetal pain"-based ban in front of the Supreme Court was already a priority even before anti-abortion activists knew that they had a federal sweep on their hands.

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"We would definitely want to get more Pain Capable Unborn Child bills in the states," National Right to Life President Carol Tobias told Cosmopolitan.com even before Trump was projected to win the White House. Now that a federal bill is finally a possibility–and there will be no Democratic veto to worry about–it will be drafted and passed quickly, likely as soon as the new Congress is sworn in.

Limiting abortion to 20 weeks post conception will have a major impact on the ability to access legal terminations, and it is an issue that will be exacerbated by his other pledge–the one to defund Planned Parenthood and instead shift those dollars to community health centers. As we've seen in Texas over the last few years, removing family planning dollars from any organization that provides or refers for abortions causes a crisis when it comes to accessing contraceptive services–especially in rural areas. That means an increase in unintended pregnancies, and more people seeking out abortions, and often getting them later in their pregnancies because of surging patient demand in local clinics. The two "pro-life" policies could create a perfect storm for later abortions or unwanted full-term births, as well as clandestine, self-induced abortions.

The inability to access birth control easily–an issue that will be impacted not just by defunding Planned Parenthood but when Trump and the Republican Congress follow through on their promise to repeal the Affordable Care Act, which mandated no co-pay birth control in insurance programs–plus the likelihood that it will be nearly impossible to get an abortion after 20 weeks will both have immediate effects on women. But if Trump has the opportunity to appoint even more Supreme Court justices, that would shift the court even further right, and he has pledged to only appoint justices who would overturn Roe, which would allow states to make abortion completely illegal again. Currently, there are three justices are age 78 or older, and they all are considered liberal-leaning judges.

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When the Tea Party rode a conservative wave into office in 2010, states passed hundreds of bills restricting access to abortion and birth control. While the Republican-led House tried to do the same on a federal level, having a Democrat in the White House blocked most of that agenda, keeping it constrained primarily to red states.

With President Trump, a Republican Congress, and at least 33 Republican governors working together, there may not be anyone who can stop them, and no state that will not be affected.

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